Dittemore v. Transit Authority of City of Omaha

MICHAEL L. DITTEMORE, an individual, Plaintiff,v.THE TRANSIT AUTHORITY OF THE CITY OF OMAHA D/B/A METRO AREA TRANSIT, a Nebraska corporation, Defendant.

MEMORANDUM AND ORDER

John
M. Gerrard, United States District Judge.

This
matter is before the Court on the defendant's motion to
dismiss (filing 7) the plaintiff's claim for
relief arising under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-3(a), the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12203, and
the Nebraska Fair Employment Practice Act (NFEPA), Neb.
Rev. Stat. § 48-1101et seq. The Court
agrees with the defendant that the plaintiff failed to state
a claim under the NFEPA and did not exhaust his
administrative remedies for a Title VII or ADA claim.
Accordingly, the Court will grant the motion to dismiss.

BACKGROUND

The
plaintiff, Michael Dittemore, was a facility engineer for the
defendant, Metro Area Transit (MAT). Filing 3 at 1. MAT
engineers are required to maintain a commercial driver's
license and Department of Transportation (DOT) medical
certification. Filing 3 at 2.

According
to Dittemore, he received a DOT certification in 2013 that
was valid until 2015. Filing 3 at 2. But in 2014,
MAT refused to accept his certification. Filing 3 at
3. So, he got another DOT medical certification from his
personal physician on April 23, 2014, which was valid through
April 30, 2016. Filing 3 at 3. But in July 2014,
Dittemore was told that he had to obtain a new certificate
from a doctor listed on the National Registry of Certified
Medical Examiners.[1] Filing 3 at 3.

At
around the same time, Dittemore reported to MAT that he had
seen another MAT employee stealing scrap metal and selling it
on eBay. Filing 3 at 3-4. Dittemore alleges that, a
few days later, he was informed by his supervisor that he had
been suspended for failing to obtain a new DOT certification.
Filing 3 at 3. But he alleges that the day after
that, another MAT supervisor told him that he had not been
suspended and his time card was being docked "attendance
points" because he was absent. Filing 3 at 4.

A
little over a week later, MAT's physician issued
Dittemore a temporary 3-month DOT certification, but he was
required to undergo a sleep study, at his own expense. Filing
3 at 4. He alleges that he was unable to complete
the sleep study before the temporary certification expired.
Filing 3 at 4. Dittemore was again suspended without
pay in October 2014 on the basis of the expired
certification, and he alleges that he "continue[d] to
accrue attendance points while he was suspended." Filing
3 at 5; filing 10-3. In December, he was
terminated, allegedly as a result of his accrued attendance
points. Filing 3 at 11; filing 10-3.

Dittemore
filed a discrimination charge with the Nebraska Equal
Opportunity Commission (NEOC). Filing
10-3.[2] His charge complained of age and
whistleblower discrimination. Filing 10-3. The NEOC
found that the evidence failed to support the allegations,
and dismissed the charge on both bases. Filing 10-4.
Dittemore sued. Filing 3.

Dittemore's
complaint contains two claims for relief. The first, that he
was unlawfully terminated on the basis of his age in
violation of state and federal age discrimination statutes,
has not been put at issue by MAT's motion to dismiss. The
second claim for relief is captioned "Violation of
Nebraska Fair Employment Practice Act's Prohibition On
Retaliation, " and cites 42 U.S.C. §§
2000e-3(a) and 12203, and Neb. Rev. Stat. § 48-1114.
Filing 3 at 9. It alleges that Dittemore was
terminated in retaliation for (1) "provid[ing] medical
documentation identifying and validating his medical
status" and (2) reporting to "management that [MAT]
employees were stealing . . . then selling . . . scrap metal
for personal profit." Filing 3 at 11. MAT moves
to dismiss Dittemore's retaliation claim. Filing
7.

STANDARD
OF REVIEW

To
survive a motion to dismiss under Fed. R. Civ. P.
12(b)(6), a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). A claim has facial plausibility when the
plaintiff pleads factual content that allows the Court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged. Id. While the Court must
accept as true all facts pleaded by the nonmoving party and
grant all reasonable inferences from the pleadings in favor
of the nonmoving party, Gallagher v. City of
Clayton,699 F.3d 1013, 1016 (8th Cir. 2012), a pleading
that offers labels and conclusions or a formulaic recitation
of the elements of a cause of action will not do.
Iqbal, 556 U.S. at 678. Determining whether
a complaint states a plausible claim for relief will require
the reviewing court to draw on its judicial experience and
common sense. Id. at 679.

DISCUSSION

MAT
moves to dismiss the retaliation claim on two grounds. First,
MAT claims that Dittemore fails to state a claim under the
NFEPA. Second, MAT claims that to the extent Dittemore is
attempting to plead a Title VII ...

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